APPELLATE COURT OPINIONS

Carol Bracken Orten (“Wife”) sued Thaddeus Charles Orten (“Husband”) for a divorce. During the course of discovery, Husband refused to provide certain financial information as he felt the information to be irrelevant. After Husband failed to appear without explanation at the second Trial Management Conference, the Trial Court entered a default judgment against Husband as a sanction for his actions. Husband’s attorney immediately withdrew from the case and the Trial Court then proceeded to distribute the marital property and award Wife alimony and child support based solely on Wife’s uncontested testimony. Husband secured new counsel and filed a motion to alter or amend the judgment, or for a new trial. The Trial Court denied Husband’s motion and this appeal followed. We affirm.

The plaintiff, an unlicensed home improvement contractor, entered into an agreement with the defendant/homeowner to make certain improvements to her existing home. Shortly after the plaintiff left the job site, the defendant/homeowner began to experience several problems associated with the plaintiff’s work. The defendant/homeowner paid to have the defects repaired and/or completed. The plaintiff filed a petition against the defendant/homeowner to enforce a materialman’s lien. The defendant/homeowner filed a counter-complaint seeking damages for breach of contract, breach of implied warranties, fraud, and violations of the Tennessee Consumer Protection Act. At the conclusion of the bench trial, the chancellor held that the plaintiff’s conduct amounted to constructive fraud, thereby voiding the contract; the plaintiff was only entitled to recover the cost of his labor and materials under quantum meruit; and the defendant/homeowner was entitled to damages, attorney’s fees, and discretionary costs. The plaintiff appealed to this Court to contest the chancellor’s inclusion of certain costs in the damage award, the limitation of his quantum meruit recovery, the finding of constructive fraud, and the award of attorney’s fees to the defendant/homeowner. The defendant/homeowner appealed the chancellor’s exclusion of certain costs from the damage award and the method used by the chancellor in calculating the damages. We affirm in part and vacate in part.

I respectfully dissent from the majority opinion. I would hold that the trial court erred in not setting aside the entry of the default judgment against Mr. Orten. In my judgment the evidence supports the conclusion that Mr. Orten did not intentionally fail to appear at the second Trial Management Conference, but simply forgot to appear. Entry of a default judgment against Mr. Orten is too drastic a measure in this case.

I concur completely with the majority’s resolution of Appellant’s first issue. I, respectfully, dissent from the majority’s decision as to Appellant’s second issue.

I adhere to my longstanding view that a “preponderance of the evidence” standard and a “clear and convincing evidence” standard are incompatible with each other and cannot be reconciled either in the trial court or in appellate courts. The effort to make these standards compatible, as asserted in Ray v. Ray, 83 S.W.2d 726 (Tenn.Ct.App.2001), and its progeny are in my view incorrect for reasons stated at length in Estate of Acuff v. O’Linger, 56 S.W.3d 527 (Tenn.Ct.App.2001) and In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV, filed June 3, 2003 (Tenn.Ct.App.2003-Cain, concurring).

Mother appeals the Dickson County Juvenile Court’s Order terminating her parental rights to three children, C.L.M., M.M.M., and S.D.M. Father does not challenge the trial court’s termination of his parental rights. We affirm the judgment of the trial court.

The Cumberland County Bank (“the bank”) filed an unlawful detainer action in general sessions court against Dee Downs Eastman. The bank sought to obtain possession of real property conveyed to it following the bank’s foreclosure of deeds of trust securing promissory notes executed by Ms. Eastman. The general sessions court entered judgment for possession “for which a Writ of Possession may issue.” Ms. Eastman appealed to the trial court and, along with the Dee Downs Eastman Revocable Trust (“the trust”), filed in that court a counterclaim that essentially challenged the validity of the foreclosure sale by which the bank acquired its title to the subject property. The trial court granted the bank summary judgment as to all issues. Ms. Eastman and the trust appeal.  We affirm.

This appeal involves the termination of the parental rights of a biological mother who is serving a lengthy prison sentence. Following years of drug abuse, criminal conduct, periodic incarceration, and inconsistent attention to the needs of her two children, the mother pled guilty to charges of especially aggravated kidnaping and aggravated robbery and was sentenced to serve concurrent terms of fifteen and twelve years in prison. Following her incarceration, the fathers of both children filed petitions to terminate her parental rights. The juvenile court consolidated these petitions with the mother’s petition for visitation and appointed guardians ad litem for the children. The guardians ad litem later filed a joint petition to terminate the mother’s parental rights, and the fathers voluntarily dismissed their termination petitions. Following a bench trial, the juvenile court entered orders terminating the mother’s parental rights to both children on three grounds. The mother has appealed.  We have determined that the record contains clear and convincing evidence to support terminating the mother’s parental rights on two of the three grounds relied upon by the court and to support the court’s conclusion that terminating the mother’s parental rights is in the children’s best interests.

Former wife, Cathy Williams, appeals the action of the trial court in reducing the alimony in futuro obligation of former husband, Rodney Williams, from $4,000 per month to $2,000 per month based on a finding that a substantial and material change in circumstances sufficient to justify the decrease had occurred. The judgment of the trial court is affirmed.

This is a personal injury case arising out of an automobile accident. The defendant rear-ended the plaintiff’s vehicle, and the plaintiff filed this lawsuit against the defendant for the damages resulting from the accident. A jury trial was held. At the conclusion of the trial, the jury awarded the plaintiff compensatory damages, including an amount for future pain and suffering and permanent injury.  The trial court entered a judgment on the verdict. The defendant filed a motion to alter or amend the judgment, arguing that some elements of the jury’s verdict were not supported by the evidence at trial. The motion was denied. The defendant now appeals. We affirm in part, reverse in part, and remand for the trial court to amend the judgment to conform with the evidence at trial.

This is a post-divorce case. Clyde Edwards (“Husband”) appeals the trial court’s denial of his motion to modify his alimony obligation to his former wife, Sarah Ann Edwards (“Wife”).  Husband’s original motion was premised on the fact that Wife was living with her adult daughter and son-in-law. We affirm.

This is an appeal from the trial court’s reversal of an administrative decision. The plaintiff police officer was involved in a one-car collision while driving a police van. At the time, he was on sick leave and was not authorized to be driving the van. The van contained numerous high-powered police weapons. After the accident, the officer locked the van and left it at the accident scene overnight. The next day, the officer notified the police department about the accident. The officer was later terminated for his conduct arising out of the accident. The officer appealed his termination to the Civil Service Commission, which upheld the termination. The officer then filed the instant lawsuit in the lower court, seeking a review of the Commission’s decision. The trial court reversed  the Commission, holding that no material evidence supported its decision to uphold the termination.  From that decision, the City now appeals. We reverse the decision of the trial court and uphold the Civil Service Commission’s decision to terminate the plaintiff officer, finding material evidence in the record to support the Civil Service Commission’s decision.

This case is about parental relocation and child custody. The parents of a minor child divorced in 2001. Both parents lived in Lexington, Tennessee, and, at the time of the divorce, agreed to joint custody. The child alternated daily between the parents’ homes. In 2002, the mother remarried and moved to Murfreesboro, Tennessee. The mother petitioned the court to designate her as primary residential parent and allow her to move the child with her to Murfreesboro. The father opposed the petition and asked the court to designate him as the primary residential parent. The trial court found that it was in the child’s best interest to move to Murfreesboro with the mother, and designated her as primary residential parent. The father appealed. We affirm, finding that the evidence does not preponderate against the trial court’s decision to designate mother as primary residential parent and permit the child to move with her.

Father appeals the termination of his parental rights to his two minor children, arguing that Petitioner, the children's maternal grandmother, did not show by clear and convincing evidence that Father had abandoned his children. Father also asserts that because there is no transcript or audio recording of the trial court's hearing this court is unable to conduct an adequate appellate review. We agree with Father and find that due to the lack of a transcript or audiotape of the evidence presented at the termination hearing, we are unable to determine whether clear and convincing evidence supported the termination of his parental rights. Consequently, Father has been deprived of an effective review on appeal. We therefore vacate the judgment of the trial court terminating Father's parental rights and remand for further proceedings.

Petitioner/Appellant is an inmate in the custody of the Tennessee Department of Correction.  This appeal arises from the Appellant’s filing of the underlying pro se petition for common-law writ of certiorari, seeking review of the Warden’s decision to move him from one housing unit to another.  The trial court dismissed Inmate’s case based upon its determination that the Warden’s decision was administrative, as opposed to judicial, in nature and that, as such, the common-law writ of certiorari was not the proper vehicle for review. Inmate appeals. We affirm.

In this extended post-divorce battle over child support, alimony, property division and various other imaginative issues, the trial court granted summary judgment to the defendant. The judgment of the trial court is vacated, and the cause is remanded for trial of specific issues.

This case involves a divorce and the validity of a postnuptial agreement. Mr. and Ms. Stutz were married more than twenty years. During most of the marriage, they wanted to have children but were unsuccessful. When a child became available for adoption, Ms. Stutz was elated and aggressive in her actions to secure the adoption of the child, but Mr. Stutz was opposed to the adoption of the child. Over the course of several weeks, Ms. Stutz attempted to change Mr. Stutz's mind regarding the adoption. Finally, she suggested that in exchange for his consent to the adoption, they would enter into an agreement dividing the marital estate and in the event Mr. Stutz was unhappy being a father they would divorce and follow the agreement previously determined. The result was a lengthy postnuptial agreement, which among other things, divided the marital estate giving most of the marital property to Mr. Stutz. Within a few years of the signing of the postnuptial agreement and the adoption, Ms. Stutz filed for divorce. The trial court upheld the validity of the postnuptial agreement with the exception of a section which attempted to waive and/or significantly limit Mr. Stutz's child support obligation. The trial court also granted a divorce to the parties upon Mr. Stutz's motion without conducting an evidentiary hearing. Ms. Stutz appeals. We hold that the postnuptial agreement is invalid as it is contrary to public policy. We further hold that the trial court erred in granting a divorce to the parties in the absence of a stipulation to or proof of grounds for divorce. Accordingly, we reverse the trial court's decision and remand this case for a trial on the division of the marital estate, alimony, divorce, and any remaining issues.

In this post-divorce action, Robert William Fuller, Jr. ("Father") filed a petition seeking, among other things, a modification of the custody arrangement with respect to the parties' minor son, Ryan; an enforcement of parenting time with both Ryan and his daughter, Caitlyn; and a finding of contempt against his former wife, Lynn Gail Harrison, formerly Fuller ("Mother"). Mother filed a counterclaim, seeking an increase in child support. Following a hearing, the trial court essentially denied Father's petition. It left Mother as the primary residential parent of both children. In addition, the trial court ordered that Father's visitation with Caitlyn would be at the sole discretion of a named counselor. The trial court did not find Mother in contempt. Father appeals. We affirm in part, reverse in part, and modify in part.

The father filed a Petition to change custody of minor son from mother to father. Upon hearing evidence, the Trial Court held there had been a material change of circumstances and it was in the child's best interest to award custody to the father. On appeal, we affirm.

The trial court dismissed an action against the county arising from a deputy sheriff's allegedly negligent failure to arrest a man who had just assaulted his former girlfriend, the mother of his child. The man later murdered his young son. The mother of the child appealed. Because the public duty doctrine provided a shield from liability, and the complaint did not allege facts sufficient to establish the special duty exception, we affirm the trial court.

This appeal arises from a trial court's order granting Appellee's motion which was labeled a motion to dismiss but treated as a motion for summary judgment. The trial court determined that Appellant lacked standing to bring her cause of action, and, alternatively, was barred from bringing her claim by the doctrine of collateral estoppel. Appellant seeks review by this Court, and, for the following reasons, we affirm.

I agree with the result reached by the majority. I write separately to point out that the applicable statute, Tenn. Code Ann. § 57-5-105, expressly provides that an application for a beer permit “shall disclose” that “no . . . person to be employed . . . has been convicted of any violation of the laws [pertaining to beer or other alcoholic beverages] or any crime involving moral turpitude within the past ten (10) years.” Tenn. Code Ann. § 57-5-105(c)(7). In addition to this requirement pertaining to the contents of the application, Tenn. Code Ann. § 57-5-105(b), dealing with what “an applicant must establish,” contains a proof requirement using the same language. See Tenn. Code Ann. § 57-5-105(b)(4).

This case involves the Petitioner’s application for a permit to sell beer both on and off-premises of her proposed business establishment. The trial court affirmed the Appellee McMinn County Commission’s decision to deny the permit, pursuant to Tenn. Code Ann. § 57-5-105, on grounds that Petitioner’s application contained a false statement. Petitioner contends on appeal that she should have been granted the permit because she did not know the statement was false at the time she made it, and because she attempted to amend the application to correct the false statement prior to the hearing before the McMinn County Chancery Court. We affirm the judgment of the trial court.

This is an appeal of a divorce action in which the Wife argues that the trial court failed to make an equitable distribution of the marital estate and the trial court erred in dismissing her independent lawsuit against Husband, and a corporation owned by Husband, for wages claimed to be earned by Wife and owing by the corporation. We hold that the distribution of marital property should be modified so as to award Wife sole ownership of the marital home, subject to Husband's right of first refusal to purchase the home in the event it is sold, and Husband's right to visit and maintain the gravesite of the parties' daughter, located near the home on part of the marital estate, upon Husband's providing reasonable notice to Wife. We further find that the trial court erred in dismissing Wife's lawsuit against Husband and therefore vacate the trial court's order dismissing with prejudice the Wife's lawsuit against Husband and the corporation. We affirm the trial court's ruling in all other respects.

The plaintiff filed a motion for summary judgment with the trial court. After conducting a hearing on the motion, the trial court entered an order which amounted to a denial of the plaintiff’s motion.  Accordingly, the trial court’s order does not constitute a final judgment which the plaintiff may appeal to this Court. This appeal stands dismissed for lack of appellate jurisdiction.